In a victory for transparency, the government contractor Pen-Link agreed to disclose the prices and descriptions of surveillance products that it sold to a local California Sheriff's office.

The settlement ends a months-long California public records lawsuit with the Electronic Frontier Foundation and the San Joaquin County Sheriff’s Office. The settlement provides further proof that the surveillance tools used by governments are not secret and shouldn’t be treated that way under the law.

Last year, EFF submitted a California public records request to the San Joaquin County Sheriff’s Office for information about its work with Pen-Link and its subsidy Cobwebs Technology. Pen-Link went to court to try to block the disclosure, claiming the names of its products and prices were trade secrets. EFF later entered the case to obtain the records it requested.  

The Records Show the Sheriff Bought Online Monitoring Tools

The records disclosed in the settlement show that in late 2023, the Sheriff’s Office paid $180,000 for a two-year subscription to the Tangles “Web Intelligence Platform,” which is a Cobwebs Technologies product that allows the Sheriff to monitor online activity. The subscription allows the Sheriff to perform hundreds of searches and requests per month. The source of information includes the “Dark Web” and “Webloc,” according to the price quotation. According to the settlement, the Sheriff’s Office was offered but did not purchase a series of other add-ons including “AI Image processing” and “Webloc Geo source data per user/Seat.”

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The intelligence platform overall has been described in other documents as analyzing data from the “open, deep, and dark web, to mobile and social.” And Webloc has been described as a platform that “provides access to vast amounts of location-based data in any specified geographic location.” Journalists at multiple news outlets have chronicled Pen-Link's technology and have published Cobwebs training manuals that demonstrate that its product can be used to target activists and independent journalists. Major local, state, and federal agencies use Pen-Link's technology.

The records also show that in late 2022 the Sheriff’s Office purchased some of Pen-Link’s more traditional products that help law enforcement execute and analyze data from wiretaps and pen-registers after a court grants approval. 

Government Surveillance Tools Are Not Trade Secrets

The public has a right to know what surveillance tools the government is using, no matter whether the government develops its own products or purchases them from private contractors. There are a host of policy, legal, and factual reasons that the surveillance tools sold by contractors like Pen-Link are not trade secrets.

Public information about these products and prices helps communities have informed conversations and make decisions about how their government should operate. In this case, Pen-Link argued that its products and prices are trade secrets partially because governments rely on the company to “keep their data analysis capabilities private.” The company argued that clients would “lose trust” and governments may avoid “purchasing certain services” if the purchases were made public. This troubling claim highlights the importance of transparency. The public should be skeptical of any government tool that relies on secrecy to operate.

Information about these tools is also essential for defendants and criminal defense attorneys, who have the right to discover when these tools are used during an investigation. In support of its trade secret claim, Pen-Link cited terms of service that purported to restrict the government from disclosing its use of this technology without the company’s consent. Terms like this cannot be used to circumvent the public’s right to know, and governments should not agree to them.

Finally, in order for surveillance tools and their prices to be protected as a trade secret under the law, they have to actually be secret. However, Pen-Link’s tools and their prices are already public across the internet—in previous public records disclosures, product descriptions, trademark applications, and government websites.

 Lessons Learned

Government surveillance contractors should consider the policy implications, reputational risks, and waste of time and resources when attempting to hide from the public the full terms of their sales to law enforcement.

Cases like these, known as reverse-public records act lawsuits, are troubling because a well-resourced company can frustrate public access by merely filing the case. Not every member of the public, researcher, or journalist can afford to litigate their public records request. Without a team of internal staff attorneys, it would have cost EFF tens of thousands of dollars to fight this lawsuit.

 Luckily in this case, EFF had the ability to fight back. And we will continue our surveillance transparency work. That is why EFF required some attorneys’ fees to be part of the final settlement.